The new dominion. [volume] (Morgantown, W. Va.) 1876-1904, 1887-10-15

The Rights Of the People 10 water for eh<
Use Of Towns and Cities.

Inc Ek1Ehfg OF the People % water Tor inc
Use Of Towns and Cities.
This question is one that is destined
to become increasingly prominent as
the population increases, the country
becomes more developed. and the
available supply of water in times Of
scarcity becomes less and less. This
subject is presented under the head Of
Resource for Cheap Water for the
People in the last publication Of the
New England Water-Works Associa-
ton 1t seems that in at least two
States Massachusetts and Maine) all
natural bodies of water of over ten
acres in area are legally styled Great
Ponds" and have always been public
rroperty-no private title approaching
nearer than low-water mark. The
State of Massachusetts has adopted the
principle of giving this water free to
municipalities requiring it. The ar
gument by 7. NJ Stetson. Esq. sub
mitted at the time of the application
of Fall River for condemnation Of the
water of Watuppa Ponds, is given in
full in this paper. 1t is based on two
propositions:
a. That the State owns the water in these
"Great Ponds" and may well give from it TO
its people without toll or payment.
(2) That any ancient licenses or privileges
here tofore allowed to parties to use, control,
and avail of the surplus waters after they pass
into the outlet stream (the Quequechan or
Fall river, shall so far as they legally may, be
revoked or prevented from standing now In the
way OF the proposed gift from the State to its
people.
The opponents Of the application
held that they had prior right from
continued use under license given in
1926. but the argument states that the
Supreme Court of the United States
had in three cases decided against the
irrevocability of such licenses.
/ The State had in 1847 consecrated
the Great Ponds to the public for ever,
and Justice Hoar upheld this in writ
ten opinion, stating: There is no adj
judged case in which any right in them
adverse to the public has ever been
recognized" This same opinion
quotes from several other opinions as
follows:
Riparian owners on the stream own the uses
of the water that actually succeeds in getting
into the stream. but that is all.
The use which every owner in q running
stream may claim is only of the water which
has entered into and become part OF the
stream.
The grant by the Legislature OF an exclusive
right Of the water power Of a navigable stream
does not give title to the corpus OF the water.
Hence q subsequent grant to the district TO
erect water works to supply its Inhabitants
with water Is not In violation of the previous
grant OF the water power.
An upper owner has an unqualified right to
drain his marsh, and q neighboring proprietor
can not complain OF deprivation of water
which would otherwise come to his land, etc.
Water taken from q pond before it could
reach the outlet never could be water flowing
from the pond.
In short, until water gets into defined
water-course, it has relations with the ripa-
rian owners along such intercourse. The line
of demarkatlon of the title is at the point
where the water de facto leaves the great pond
and enters the water-course. Till then II be-
longs to the State, afterwards to the riparian
owners on the stream.
Numerous other decisions are quoted
to show that no license by the State
can be held to be irrevocable, or to
withhold the State from exercising its
sovereignty should occasion arise.
So in this case 'the ancient policy
was to encourage mills. but never at
the expense of the peoples thirst and
cleanliness.
The bill that was passed last year in
in the case of the city Of New Bedford
provided for the taking and using Of
the waters of Little Quitticas pond,
without liability for other damages
than the State itself would be liable to
pay.
The city Of Worcester is now defend
ing a suit for diversion of water. but
the testimony published is too meager
to give an ineligible statement Of the
case. 1t is we'll that all who are inter-
ested in water works become fully ac-
quainted with the principles underly-
ing such cases, so clearly and adj
mirably stated in the one before u.s.
Sanitary Engineer.